Lord Archer of Sandwell: My Lords, I was in fact doing a random count. I have much more frequently seen an emptier House.

Lord Henley: My Lords, I have now been in this House, more or less to the day, for some 20 years and I have seen the House both full and empty on many occasions. However, on important subjects--and I am sure we would all agree that capital punishment is a most important subject--one would expect to see the Chamber considerably fuller than it is at present. Indeed, one would expect an amendment such as the one moved by the noble and learned Lord to have been flagged up in press reports and to have a degree of coverage that it has not received.

Obviously I shall not vote against the noble and learned Lord should he wish to press the matter to a Division. However, I would prefer him not to press the amendment on this occasion. Indeed, it might be more appropriate for him to return to the matter on Third Reading when we can repeat the debate in a fuller House showing greater interest. I believe that something which has not really come to the attention of--dare I say it?--that many noble Lords should not, on an occasion such as this, be pressed to a vote.

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As I made clear, I am not opposed to the amendment; my opposition is to the timing of it and the fact that it is being introduced as a Back-Bench amendment on such a Bill at this stage. I hope, therefore, that the noble and learned Lord will carefully consider whether it might be more appropriate for him to try to generate a greater degree of interest in his amendment and return to the matter on Third Reading.

Lord Williams of Mostyn: My Lords, I am grateful to my noble and learned friend Lord Archer and, indeed, to all contributors to the debate. As has been said, capital punishment for murder was abolished as long ago as 1965; but, equally, the death penalty still remains as a valid--that is, capable of being used--though unused sentence for the offences which have been specified.

My noble and learned friend Lord Archer rightly made perfectly clear that the amendment would not affect the position on Armed Forces legislation. The Government do not believe that the abolition of the death penalty for these obscure offences is a priority because we have other priorities; namely, to improve the criminal justice system and take forward our various manifesto commitments in the field. The offences are very archaic and, indeed, are rarely prosecuted.

However, although it is not a priority, it is an important matter of principle; namely, should those who commit these particular offences be executed for those crimes? Like our predecessors, we believe that questions relating to the availability of the death penalty are matters for individual Members of the House to decide on a free vote, according to conscience.

As my noble friend Lord Ponsonby said, our position internationally is quite clear. Parliament has consistently voted against the death penalty. We supported the Final Declaration of the Second Council of Europe Summit as recently as 11th October 1997. We have always believed that these are matters for a free vote. The consequences of the amendment have been sufficiently spelt out to enable me not to repeat them.

I am advised that the amendment would substitute a maximum of life imprisonment, not a mandatory life sentence. I believe I should stress that fact, although it may not affect the principle. In view of the fact that the most serious examples of these offences are murder and, as the noble Earl, Lord Onslow, indicated, cover other actions such as violating female members of the Royal Family whether or not they consent, we believe that a discretionary life sentence is appropriate.

As I said, it is a matter for a free vote. I cannot advise noble Lords on what view to take on the amendment. However, according to tradition, I am entitled to give my personal view while standing here and I do so. Indeed, I made clear my view when the amendment was discussed in Committee. However, noble Lords were present at that stage and I respectfully, gently dissent from the view expressed by the noble Lord, Lord Henley, that this matter has not been sufficiently covered. There are those who choose to attend and speak and that is their choice. Alternatively, there are those who choose to absent themselves and that is their choice. I do not believe that the matter has been sprung unwittingly on an unknowing House. That is my personal observation.

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As I said, I am entitled to give my view. I have always opposed the death penalty. If my noble and learned friend Lord Archer calls for a Division, I shall vote with him to abolish these offences--

Noble Lords: Hear, hear!

Lord Williams of Mostyn: However, there is a relatively minor point with which I shall deal shortly. If my noble friend's amendment is carried, we shall of course need to ascertain whether any further consequential amendments are required to attend to ancient legislation. If that proves to be the case, and if my noble friend's amendment is carried, we shall aim to bring such amendments forward on Third Reading.

Lord Archer of Sandwell: My Lords, I am most grateful to all noble Lords who have participated in the debate, especially those who supported my amendment. I am also most grateful to my noble friend the Minister. The speech he has just made from the Government Front Bench was indeed a delight to hear. I hope that we will hear many more speeches of that kind.

It is very tempting at this stage to try to address some of the issues that have been ventilated during the course of the debate. However, discarding the habits of a lifetime, I propose to resist that temptation. I would be a faint heart indeed if, with so much encouragement, I did not offer your Lordships the opportunity of taking a decision. I propose, therefore, to test the opinion of the House.

5.55 p.m.

The Deputy Speaker (Baroness Cox): My Lords, the Question is that Amendment No. 82 shall be agreed to. As many as are of that opinion will say "Content". To the contrary, "Not-Content". I think the Contents have it. Clear the Bar.

Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 31. A Division therefore cannot take place, and I declare that the Contents have it.

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 83:

After Clause 27, insert the following new clause--

Rape offences

(".--(1) In section 1 (rape of woman or man) of the Sexual Offences Act 1956 ("the 1956 Act"), for paragraph (b) of subsection (2) there shall be substituted the following paragraph--
"(b) at the time he does not have reasonable grounds for believing that the person is consenting to sexual intercourse."
(2) Subsection (2) of section 1 (meaning of "rape" etc.) of the Sexual Offences (Amendment) Act 1976 ("the 1976 Act") shall cease to have effect.

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(3) Section 2 (restrictions on evidence at trials for rape, etc.) of the 1976 Act shall be amended as follows--
(a) in subsection (1), for the words "a rape offence" there shall be substituted the words "an offence listed in the Second Schedule to the Sexual Offences Act 1956 and triable on indictment"; and
(b) for subsection (4) there shall be substituted the following subsection--
"(4) If leave is given under subsection (1) above, evidence may be adduced and the person charged may be questioned in cross-examination at the trial to show that he has committed, been convicted of or been charged with any offence listed in the Second Schedule to the Sexual Offences Act 1956."
(4) In subsection (1) of section 4 (anonymity of complainants in rape etc. cases) of the 1976 Act, after paragraph (b) there shall be inserted the following paragraph--
"(c) after a person is accused of a rape offence, no matters likely to lead members of the public to identify that person as the person so accused shall, unless that person is convicted of the offences, be--
(i) published in England and Wales in a written publication available to the public, or
(ii) included in a relevant programme for reception in England and Wales.".").

The noble Lord said: My Lords, we have been deprived of the opportunity of voting on Amendment No. 82 but I express the pleasure of these Benches that it was accepted. Amendment No. 83 that we now discuss involves some important changes to the procedure in trials for serious sex offences, particularly rape. I should make it clear at this point that I do not intend to press this amendment to a vote because I believe that it would be wrong to do so on an issue of this importance which has not been raised until the Report stage. In any event I understand that the Government are conducting their own review of the matters covered by this amendment.

This amendment was not raised earlier because at the time of the Committee stage of this Bill the issues covered by the amendment were still a matter of internal debate within my party. That debate was resolved by a substantial majority of the party at its Spring conference last weekend. I am therefore anxious to raise these issues as soon as possible for discussion even if not for a vote. The amendment has three purposes. The first purpose is to remove the defence of mistaken belief in consent where that belief is not reasonable. That is covered by the proposed new subsections (1) and (2) of Amendment No. 83.

In the great majority of cases there are one of two defences to rape, either, "It was not me" or, "She consented". If the defence is, that she consented, the prosecution has to prove that the woman did not consent. That obligation rightly rests on the prosecution and is not affected in any way by this amendment. The defendant then has another string to his bow. He can say, "I thought she consented" even if she did not. The state of the defendant's belief is solely within his own knowledge and is difficult to disprove. Of course the rapist who springs out on a strange woman is not likely to be believed if he raises that defence, but it is much more difficult to be satisfied that the defendant is lying where some consensual sexual intimacy has occurred before the rape takes place. For example, I refer to the case of a young man who picks up a girl in a pub and takes her outside.

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If one believed that mistaken belief in consent should be a defence, even where that belief is not reasonable, then the law should not be changed even if it provides a loophole by which the guilty can often escape. But I do not believe that unreasonable belief should be a defence. If a man wants sex with a woman, or indeed with another man--rape applies to an assault on either sex--he should not go ahead unless he knows that the other person has agreed to it. If he does not have her consent, or if he does not have reasonable grounds for believing that he has her consent, he should bear criminal responsibility for his action. Genuine belief in consent which is not reasonable may be a ground for mitigating the sentence but I believe that it is not a ground for escaping conviction.

The proposed new subsection (3) of the amendment deals with another matter; namely, the cross-examination of an alleged victim on her sexual history. This is, of course, something that is now permitted--except so far as sexual history between the defendant and the complainant is concerned--only with the leave of the judge. I think it was originally contemplated that that leave would be given only in exceptional circumstances. However, it is quite widely given, no doubt because judges are worried that if they refuse it that may be a ground for appeal. First, we say that the leave of a judge which is currently required only in rape offences should be extended to other serious sex offences. I apologise that there is a misprint in the amendment. I do not think that is my fault. The phrase "liable on indictment" in the amendment should of course be "triable on indictment".

Secondly--this is a change--the proposed new subsection (3) seeks to put the defendant's sexual history in issue where leave is given to cross-examine the complainant on her sexual history. There is, of course, a general principle that where the character of the prosecution witness is attacked, the defendant puts his own character in issue in evidence. This measure gives effect to a similar principle. Where the defence raises an issue as to the sexual behaviour of the woman, we believe he should not be exempt from being cross-examined and evidence being given as to his own sexual record.

Thirdly, the proposed new subsection (4) of the amendment seeks to extend to the defendant the anonymity which is given at present to the victim. This excludes a right to identify them in the press or in the broadcasting media unless and until convicted of the crime. We believe that is only fair and that the right to anonymity should apply both to the complainant and to the victim while the trial is proceeding. At our Spring conference the party also endorsed restrictions on cross-examination by a defendant in person, similar to those proposed in Amendment No. 84 which we shall therefore support. There is great and justified concern about the law and procedure in rape trials. We believe that amendments on the lines of those numbered 83 and 84 would do much to relieve that concern.

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For the reasons given, I shall not press Amendment No. 83. However, I hope to see its contents reappear in due course in government legislation. I beg to move.